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ELCDismissedMolo CMCC No 123 of 2019 - Appeal· [2025] KEELC 5399 (KLR)

Kibinge (Suing as the Administrators Ad Litem of the Estate of Nelson Kibinge Githura - Deceased) v Wainaina (Environment and Land Appeal E018 of 2024) [2025] KEELC 5399 (KLR)

Environment and Land Court
21 July 2025
2,958 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled a title bought at auction because the bank skipped mandatory legal notices before selling land belonging to a deceased person.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Nakuru against the judgment of Hon. E.G Nderitu (C.M) delivered on 12th March 2024 in Molo CMCC No 123 of 2019. The Appellant, as plaintiff, had sued the Respondent seeking eviction from, a permanent injunction over, and general damages for trespass on Shawa/Rongai Block 3/47 (Sachangwani). The Respondent counterclaimed, seeking a declaration that the sale and registration of the land to the Appellant's late father, Nelson Kibinge Githura, was fraudulent, null and void, cancellation of title, eviction and injunction. The trial court found the counterclaim proved and cancelled the title. The Appellant, alleging he was an innocent purchaser at a public auction conducted under the Bank's statutory power of sale, appealed on 14 grounds contending the trial court disregarded his evidence and converted his suit into a claim against the Bank, a non-party. M. A. Odeny J reduced the grounds to a single issue: whether the trial court erred in finding the Appellant's acquisition of the suit land illegal and the transfer null and void. The court applied the first-appeal duty to re-evaluate evidence and held that where the root of title is challenged, the proprietor must prove legality of acquisition beyond the title instrument. The trial court's finding of non-compliance with the mandatory notices under Sections 74 and 77 of the Registered Land Act (Repealed) was upheld, noting the Bank knew the chargor was deceased and no legal representative existed. A title illegally or unprocedurally acquired is not protected by Sections 24, 25 and 26 of the Land Registration Act. The appeal was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the Appellant proved that the suit property was legally acquired through a valid public auction

Holding

The Appellant failed to prove a lawful acquisition; the auction was conducted without the mandatory statutory notice and over property of a deceased person

Reasoning

The trial court found no evidence that the requisite three months' notice under Section 74 of the Registered Land Act was served on the chargor or her dependants, the Bank having known the chargor was deceased. The Law of Succession Act vests power to deal with a deceased's property only in a personal representative, not an 'estate'. By the time of sale and transfer, the registered owner was long dead and no grant was in place, rendering the process invalid.

p. 6
02

Whether the Appellant's title was protected under Section 26 of the Land Registration Act as an innocent purchaser

Holding

No - a title acquired illegally or unprocedurally is not protected by Sections 24, 25 and 26 of the Land Registration Act

Reasoning

Since the root of title was under challenge, the Appellant had to go beyond the title instrument and prove legality of acquisition (Munyu Maina v Hiram Gathina Maina). Having not followed the laid-down procedures under Sections 74 and 77 of the Registered Land Act (Repealed), his title could not stand and cancellation was properly ordered.

p. 6
03

Whether the Trial Magistrate erred in considering evidence relating to the Bank's sale when the Bank was not a party

Holding

The court properly analysed the evidence on the record, including evidence the Appellant himself tendered through the Bank's advocate

Reasoning

The Appellant called the Bank's lawyer E. Okero to give evidence on the loan and statutory power of sale; he could not disown evidence he had placed on the record. A court has an obligation to analyse all evidence tendered before it in arriving at its decision.

p. 5

Legal principles established

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  • Where the root of a title is challenged, the registered proprietor must prove legality of acquisition beyond the title instrument
  • A title illegally or unprocedurally acquired is not protected by the indefeasibility provisions of the Land Registration Act
  • Non-compliance with mandatory statutory notice to the chargor before exercise of statutory power of sale invalidates the sale
  • On a first appeal, the appellate court re-evaluates and re-analyses the evidence on the record

Court orders

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  1. 1.The Appeal is dismissed with costs to the Respondent
  2. 2.The judgment of the Trial Magistrate delivered on 12th March 2024 is upheld

Authorities

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Legislation

  • Land Registration ActSections 24, 25, 26(1), 26(a) and (b)
  • Land ActSection 99
  • Evidence ActSections 107, 108, 109
  • Registered Land Act (Repealed)Sections 74, 77
  • Law of Succession Actnull
  • Constitution of KenyaArticle 159(2)(a)
  • Environment and Land Courts Practice DirectionsOverriding objectives

Cases cited (14)

  • Daniel Kanyi Mwarano v National Bank of Kenya Ltd
    (2006) eKLR
  • John Mwenja Ngumba v Kenya Commercial Bank Ltd & Another
    null
  • Kitur & Another v Standard Chartered Bank & Another (No 2)
    [2002] 1 KLR 640
  • Priscillah Krobought Grant v Kenya Commercial Finance Co. Ltd & 2 others
    CA No 227 of 1995 (UR)
  • Kuria Kiarie & 2 others v Sammy Magera
    [2018] eKLR
  • Peterson Ndung’u, Stephen Gichanga Gituro, N. Ojwang, Peter Kariuki, Joseph M. Kyavi & James Kimani v Kenya Power & Lighting Company Ltd
    [2018] eKLR
  • Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another
    [2005] 1 EA 334
  • Dina Management Limited v County Government of Mombasa & 5 others
    Petition 8 (E010) of 2021 [2023] KESC 30 (KLR)
  • Marteve Guest House Limited v Njenga & 3 others
    (Civil Appeal 400 of 2018) [2022] KECA 539 (KLR)
  • Esther Ndegi Niir & Another v Leonard Gatei
    (2014) eKLR
  • Said v Shume & 2 others
    (Civil Appeal E050 of 2023) [2024] KECA 866 (KLR)
  • Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates
    [2013] eKLR
  • Kenya Commercial Bank Ltd v Pamela Akinyi Ochieng
    [1996] eKLR
  • Munyu Maina v Hiram Gathina Maina
    [2013] eKLR
On appeal from
Chief Magistrate's Court, Molo
Molo CMCC No 123 of 2019
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrate's Court (suit concerning title to land)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kibinge (Suing as the Administrators Ad Litem of the Estate of Nelson Kibinge Githura - Deceased) v Wainaina (Environment and Land Appeal E018 of 2024) [2025] KEELC 5399 (KLR)", Case Analysis (2025). Molo CMCC No 123 of 2019 - Appeal. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5399/eng@2025-07-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.